Opinion
00 Civ. 5692 (AGS)(AJP).
March 2, 2001.
REPORT AND RECOMMENDATION
Petitioner Michael Bryant, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from his 1996 robbery conviction, alleging that: (1) he was denied his right to be present during a "material stage" of the trial, that is, during the voir dire of a prospective juror who was employed as a corrections officer (Dkt. No. 1: Pet. ¶ 12(A)); (2) the trial court's "modus operandi" jury charge deprived him of due process because "robberies of elderly wom[e]n in Parkchester by cap wearing men are far from unique" (Pet. ¶ 12(B)); (3) his sentence of thirty years to life was excessive since no one was hurt (Pet. ¶ 12(C)); and (4) the prosecutor presented a "wrong description" of Bryant and of the weapon used in the crimes. (Pet. ¶ 12(D)). For the reasons set forth below, the Court should deny Bryant's petition.
PROCEDURAL BACKGROUND Trial and Sentencing
In June 1996, after a five day trial in Supreme Court, Bronx County, a jury convicted Bryant of two counts of first degree robbery, one count of attempted first degree robbery, and one count of third degree robbery. (Pet. ¶¶ 1-5; Trial Transcript ["Tr."] 272-77.) On September 18, 1996, the trial court sentenced Bryant as a persistent felony offender to consecutive sentences of fifteen years to life on the two first degree robbery counts, and concurrent terms of ten years to life on the remaining counts. (9/18/96 Sentencing Tr. 4, 14-17.) See also People v. Bryant, 258 A.D.2d 293, 293, 685 N.Y.S.2d 194, 194 (1st Dep't), leave to appeal denied, 93 N.Y.2d 1043, 697 N.Y.S.2d 875 (1999).
Bryant's Direct Appeals in State Court
Represented by counsel, Bryant's direct appeal to the First Department raised three grounds, all of which are raised in his current federal habeas petition: (1) deprivation of the right to be present during a "material stage" of the trial, i.e., during voir dire of a prospective juror who was a corrections officer (Dkt. No. 1:10/17/00 Aff. of ADA Allen Saperstein, Ex. 1: Bryant 1st Dep't Br. at 20-28); (2) deprivation of due process because the trial court permitted the jury to consider "modus operandi" (i.e., a cap-wearing male, mugging an elderly female resident, in the Parkchester area of the Bronx, with a knife, over a period of three days in September 1994) in their determination of identity (id. at 28-36); and (3) a claim that his sentence was excessive (id. at 37-39). Bryant did not raise a claim of "wrong description of weapon" or of mistaken identity, although those matters were discussed in passing in the "modus operandi" argument. (See generally id. at 33-34.)
In response, the State concluded that: (1) "defendant's claim that he was not present during the sidebar questioning of prospective juror number thirteen is unreviewable, and his contentions that he did not validly waive his presence, and that the trial court did not properly ensure that the waiver was knowing, are both unpreserved and meritless" (Saperstein Aff. Ex. 2: State 1st Dep't Br. at 22; see also id. at 22-33); (2) "since the offenses were properly joined pursuant to CPL § 200.20(2)(b), the court was warranted in instructing the jurors that they could consider the similarities among the crimes" (id. at 34; see also id. at 34-46); and (3) "defendant's sentence was fair and proper" (id. at 47; see also id. at 47-51).
On February 9, 1999, the First Department affirmed Bryant's conviction. People v. Bryant, 258 A.D.2d 293, 685 N.Y.S.2d 194 (1st Dep't 1999). The First Department held that Bryant "was not deprived of his right to be present during the questioning of a prospective juror concerning his employment as a corrections officer, inasmuch as both prior to and subsequent to the sidebar in question there was a thorough voir dire of the prospective juror on the same subject in open court." Id. at 293, 685 N.Y.S.2d at 194. The First Department further held that "inasmuch as defendant's modus operandi was sufficiently unique, the court properly instructed the jury to consider the similarities between the various incidents on the issue of identity, while also cautioning it not to otherwise commingle the evidence." Id. Finally, the First Department "perceive[d] no abuse of sentencing discretion." Id. at 293, 685 N.Y.S.2d at 195. The New York Court of Appeals denied leave to appeal on September 23, 1999. People v. Bryant, 93 N.Y.2d 1043, 697 N.Y.S.2d 875 (1999).
Bryant's Federal Habeas Corpus Petition
Bryant's present timely-filed federal habeas corpus petition contends that: (1) he was "deprived of his right to be present during a material stage of the trial" when, in Bryant's absence, "a prospective juror was question[ed] about his employment as a corrections officer" (Pet. ¶ 12(A)), (2) the trial court "deprived [Bryant] of due process [by] overruling the defense objection and giving the jur[y] a modus operandi charge" since "robberies of elderly wom[e]n in Parkchester by cap wearing men are far from unique"(Pet. ¶ 12(B)), (3) his "aggregate sentence of thirty years to life was excessive because [Bryant] was forty three years old and no one was hurt in any of the robbery incidents" (Pet. ¶ 12(C)), and (4) there was a "wrong description of weapon" and of Bryant at trial since "the weapon had a[n] ivory handle, the sizes of weight, h[e]ight, eyes[,] and complexion was wrong. [Bryant] had [facial] hair and none of them brought it up" (Pet. ¶ 12(D)).
ANALYSIS I. BRYANT'S CLAIM THAT HE WAS NOT PRESENT AT A SIDEBAR VOIR DIRE OF A PROSPECTIVE JUROR IS NOT COGNIZABLE ON FEDERAL HABEAS REVIEW
During voir dire, a potential juror in open court said he was a corrections officer in block C 73 of Rikers Island. (Voir Dire Tr. 100.) The trial judge followed up on that at a side bar with both the prosecutor and defense counsel. (Voir Dire Tr. 117-19.) The side bar went as follows:
THE COURT: Mr. Stewart [the potential juror], can you come up please. I just want to ask you a couple of questions. What is your job and responsibility in Rikers Island, if I may ask you?
PROSPECTIVE JUROR: Right now I work patrol. I don't work in the house area because my house area is closed because the female[s] got it, they took a part of my jail away.
THE COURT: In [the defendant's cell-block] C 76?
PROSPECTIVE JUROR: C 73.
THE COURT: Are you by any chance — do you have the responsibility for delivering mail or anything like that?
PROSPECTIVE JUROR: No.
(Voir Dire Tr. 117-18.)
After the trial judge sent the potential jurors home for the evening (id. at 144-45), the judge addressed Bryant in open court:
THE COURT: Mr. Bryant, we had two conference with [potential] jurors up here about prior jury experience, we did it in your absence, but you know everything that happened. It was something that happened suddenly and I couldn't very well bring you up here. I want you to understand what happened and I assume knowing about this that it is with your consent. We will keep it to a minimum, I assure you.
THE DEFENDANT [BRYANT]: Okay.
(Voir Dire Tr. 145.)
The defense exercised a peremptory challenge on that potential juror. (Voir Dire Tr. 192-93.)
Bryant argues in his petition that this side bar violated his rights to be present during a material stage of the trial, entitling him to federal habeas relief. (Pet. ¶ 12(A).) This argument has no merit.
A defendant in a state criminal trial "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15 (1975); accord, e.g., Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.). Further, "[i]t is well established that the impaneling of a jury is one such stage." Tankleff v. Senkowski, 135F.3d 235, 246 (2d Cir. 1998); accord, e.g., Benitez v. Senkowski, 1998 WL 668079 at *8.
Under New York law, a defendant is entitled to be present at sidebar discussions when the merits of the case are discussed or where "prospective jurors' backgrounds and their ability to weigh the evidence objectively" are discussed. People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 35 (1992); see also, e.g., McKnight v. Superintendent Albauch, 97 Civ. 7415, 2000 WL 1072351 at *6 (S.D.N.Y. Aug. 2, 2000); Gaiter v. Lord, 917 F. Supp. 145, 151-52 (E.D.N.Y. 1996).
However, "'[f]ederal standards regarding a defendant's presence at a sidebar are less stringent than New York's standards.'" McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Nichols v. Kelly, 923 F. Supp. 420, 425 (W.D.N.Y. 1996)). "Indeed, the Federal Constitution generally 'does not require a defendant's presence at sidebar conferences.' "McKnight v. Superintendent Albauch, 2000 WL 1072351 at *6 (quoting Gaiter v. Lord, 917 F. Supp. at 152); see also, e.g., Benitez v. Senkowski, 1998 WL 668079 at *8 ("However, there is no Constitutional right to appear at sidebar conferencing for peremptory challenges; at most, there is a more limited right to presence during the formal exercise, in open court, of peremptory jury challenges.") (citing cases); Brown v. Edwards, 96 Civ. 3444, 1998 WL 1286349 at *5 (S.D.N.Y. Jan. 15, 1998) ("there is no right guaranteed in the federal Constitution that a defendant be present at sidebar voir dire"); Nichols v. Kelly, 923 F. Supp. at 426; People v. Sprowal, 84 N.Y.2d 113, 119, 615 N.Y.S.2d 328, 332 (1994) ("the doctrinal underpinning of the right to be present at voir dire sidebars [is] one of State, not Federal, law").
Moreover, the sidebar examination of the potential juror who was a corrections officer did not elicit any material information about that juror that was not also elicited in open court. (Compare Voir Dire Tr. 100 with Voir Dire Tr. 118-19.) Thus, any error in excluding Bryant from the sidebar voir dire would be harmless. See, e.g., Espejo v. Artuz, No. 98-CV-7130, 2000 WL 1863488 at *7 (E.D.N.Y. Dec. 18, 2000) ("The federal Constitution has never been interpreted to guarantee a right to be present at sidebar during voir dire. . . . In any event, [petitioner] has not shown how he was prejudiced . . . [since] he was present throughout the proceeding; he consulted with his attorney prior to the exercise of challenges, and he was present for the questioning of the jurors and recording of challenges in open court."); Blount v. Keane, No. 91-CV-0115, 1992 WL 210982 at *8 (E.D.N.Y. Aug. 6, 1992) ("The cases finding harmful error from defendant's absence at voir dire and/or jury selection deal with long absences. . . . If the defendant heard most of the voir dire and had ample opportunity to consult with his attorney during jury selection, harmless error analysis is appropriate."), aff'd mem., No. 92-9579, 993 F.2d 1532 (table) (2d Cir.), cert. denied, 510 U.S. 922, 114 S.Ct. 323 (1993). And, since the defense peremptorily excused the potential corrections officer juror (see Voir Dire Tr. 192-93), any error would be harmless for this reason as well. See, e.g., United States v. Dioguardi, 428 F.2d 1033, 1039-40 (2d Cir.) (although the trial judge did not arrange to have the defendants close by during a sidebar voir dire of prospective jurors, the defendants "were seated only 15-20 feet away; their experienced counsel . . . did not ask that they be allowed to come nearer; most of the jurors thus questioned were excused by the court; ample time was given for counsel to consult with defendants concerning challenges; and all the jurors whom the court had not excused were challenged either by the defendants or the Government"), cert. denied, 400 U.S. 825, 91 S.Ct. 50 (1970).
Accordingly, Bryant's claim that he was denied his constitutional right to be present during a material stage of the trial is not cognizable on federal habeas review and, even if cognizable, is without merit. The claim, therefore, should be denied.
II. THE TRIAL COURT'S "MODUS OPERANDI" JURY CHARGE DID NOT VIOLATE BRYANT'S CONSTITUTIONAL RIGHTS
At the charge conference, the prosecutor requested that the court instruct the jury that in considering the identity of the perpetrator, they could consider the similarities in the various robberies, specifically that: (1) the robberies occurred in the same area of the Parkchester Condominiums in the Bronx; (2) all were committed in September 1994 by an African-American male; (3) the victims gave a similar description of the robber including that he was wearing a baseball cap; (4) the robberies involved a knife; (5) the robbery victims were approached from behind; and (6) the victims were female senior citizens. (Tr. 134-36.) Defense counsel argued that the facts of the case did not rise to the level permitting the requested charge. (Tr. 136-39.) The trial court ruled that a "Molineux type instruction is appropriate "under the case law as applied to the facts of Bryant's case. (Tr. 139-45.)
The trial court charged the jury as follows:
Now, the defendant is charged with four separate robberies and one attempted robbery. . . . All of them for example, involve elderly women[,] the display of a knife, several say it was serrated, and occurred in the daytime under similar circumstances within a three week period in September, 1994 in the area of the Parkchester Condominiums.
Now, you may consider the alleged similarities between these incidents on the issue of whether the defendant is the perpetrator of each of these crimes and to that extent alone. Nevertheless, you must consider each charge separately. You must otherwise consider each charge separately and individually and not conclude if the defendant committed one crime, he must have [committed] the other. And I instruct you therefore, to segregate and to keep separate in your minds the evidence applicable to each of the robberies and the attempted robbery with which the defendant is charged. The proof of each crime is presented separately.
And you must otherwise consider the proof with respect to each robbery separately. You must not view the evidence cumulatively or convict the defendant based on a perception that he was prone to commit this sort of . . . [r]obberies and an alleged robbery [that] are charged in the indictment.
(Tr. 237-39.) The trial judge then went on to describe the statutory elements of the robbery and attempted robbery charges, separately for each charged crime. (Tr. 239-49.)
Defense counsel repeated his objections to the "identification" charge under People v. Molineux, 168 N.Y. 264(1901) (evidence of another offense by the accused is inadmissible to show guilt of the offense charged). (Tr. 257.)
In his appeal to the First Department, Bryant argued, through counsel, that "robberies of elderly women in Parkchester by cap-wearing men are far from unique, and the court therefore deprived [Bryant] of due process in overruling the defense objection and giving the jurors a modus operandi charge that they could consider the similarities between the separate incidents on the issue of identity." (Saperstein Aff. Ex. 1: Bryant 1st Dep't Br. at 28-36.) The First Department held that "inasmuch as defendant's modus operandi was sufficiently unique, the court properly instructed the jury to consider the similarities between the various incidents on the issue of identity, while also cautioning it not to otherwise commingle the evidence." People v. Bryant, 258 A.D.2d 293, 295, 685 N.Y.S.2d 194, 194 (1st Dep't), leave to appeal denied, 93 N.Y.2d 1043, 697 N.Y.S.2d 875 (1999).
In his habeas petition, Bryant claims that "the [trial] court . . . deprived [Bryant] of due process . . . [by] giving the jur[y] a modus operandi charge that they could consider the similarities between the separate incident[s] on the issue of identity." (Pet. ¶ 12(B).)
"'In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *5 (S.D.N.Y. June 28, 2000) (Peck, M.J.) (quoting Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63(2d Cir. 1985)); see also, e.g., Davis v. Strack, 97 Civ. 5375, 1999 WL 1565178 at *12 (Berman, D.J. Peck, M.J.) ("In order for a petitioner to establish that he is entitled to habeas corpus relief [for an error based on the trial court's jury charge], the petitioner must first establish . . . [an error] under state law, and second, that the erroneous jury charge resulted in a federal constitutional deprivation.").
Under New York law, "when the evidence of the other crimes is relevant to an issue other than the defendant's criminal tendency, it may be admitted on the basis of an exception to the general rule, but only for the limited purpose for which it is relevant." People v. Beam, 57 N.Y.2d 241, 250, 455 N.Y.S.2d 575, 580 (1982). Therefore, if the crimes are sufficiently "unique," a modus operandi charge, such as the one the trial court gave in this case, along with a limiting instruction that the jurors can consider the similarities of the crimes on the issue of identity alone, is proper. People v. Beam, 57 N.Y.2d at 251, 455 N.Y.S.2d at 580; see also, e.g., People v. Rios, 245 A.D.2d 470, 470, 666 N.Y.S.2d 467, 467 (2d Dep't 1997) ("since the defendant's identity was a primary issue at trial and the three robberies, all sharing the same distinctive modus operandi, were properly joined" the jury should be permitted to consider "evidence of guilt as to one robbery, as evidence of guilt as to the other robberies"), appeal denied, 91 N.Y.2d 944, 671 N.Y.S.2d 724 (table) (1998); People v. Dockery, 215 A.D.2d 497, 498, 626 N.Y.S.2d 525, 526 (2d Dep't) ("the foregoing facts show that the two cases were sufficiently alike to establish a modus operandi. . . . Accordingly, the court properly instructed the jury to consider the similarities between the two incidents on the issue of identity alone, and properly limited the potentially prejudicial effect of such instruction by so restricting the jury's use of the evidence."), appeal denied, 86 N.Y.2d 793, 632 N.Y.S.2d 506 (table) (1995); accord, People v. Nelson, 233 A.D.2d 926, 926, 649 N.Y.S.2d 754, 755 (4th Dep't 1996) ("Proof of one of the robberies at the trial on another would be admissible within one or more of the categories established by People v. Molineux. . . . Evidence on each separate robbery is relevant to the others on the issues of identity and modus operandi.").
Here, the crimes were sufficiently similar to warrant the modus operandi identity jury charge, and the trial court properly instructed the jury that they were to use this information to establish identity, not to commingle the evidence for the purposes of determining guilt. That the jury followed the court's instructions is clearly evidenced by the fact that Bryant was acquitted of one of the robberies. (Tr. 273.)
Accordingly, the trial court's modus operandi jury charge did not violate state law and hence could not violate Bryant's federal due process rights. The Court should deny this habeas claim.
III. BRYANT'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF
Bryant's third habeas claim, that his sentence was excessive, does not provide a basis for federal habeas relief.
"No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); accord, e.g., Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N Y 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief.").
See also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. People of the State of New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995); Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd mem., No. 88-2359, 875 F.2d 857 (table) (2d Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).
Bryant was convicted of two counts of first degree robbery (P.L. § 160.15(3)), one count of attempted first degree robbery (P.L. §§ 110 160.15(3)), and one count of third degree robbery (P.L. § 160.05). (Tr. 272-77; Saperstein Aff. ¶ 3.) Bryant was sentenced as a persistent felony offender to consecutive sentences of fifteen years to life on the two first degree robbery counts, and concurrent terms of ten years to life on the remaining counts. (9/18/96 Sentencing Tr. 4, 14-17.) See also People v. Bryant, 258 A.D.2d 293, 293, 685 N.Y.S.2d 194, 194 (1st Dep't), leave to appeal denied, 93 N.Y.2d 1043, 697 N.Y.S.2d 875 (1999). First degree robbery is a class B felony, attempted first degree robbery is a class C felony, and third degree robbery is a class D felony. P.L. §§ 160.15, 110.05(4), 160.05.
For a persistent violent felony offender, such as Bryant, the statutory sentence range for a class B felony is a minimum of twenty to twenty-five years and a maximum of life imprisonment. P.L. § 70.08. Thus, Bryant's sentence was within(indeed, below) the authorized statutory range. Accordingly, Bryant's excessive sentence claim does not raise a federal constitutional issue and is not cognizable on habeas review. Bryant's excessive sentence claim should be denied.
For persistent felony offenders convicted of class C and D felonies, the maximum is life and the minimum is sixteen and twenty years, respectively. P.L. §§ 70.08(2), 70.08(3)(b)-(c).
IV. BRYANT'S CLAIMS CONCERNING THE "WRONG DESCRIPTION OF WEAPON" AND OF MISTAKEN IDENTITY ARE UNEXHAUSTED AND PROCEDURALLY BARRED FROM HABEAS REVIEW
Bryant seems to allege that both his identity as the one who committed the crimes, and the identification of the weapon used in the crimes, were not established beyond a reasonable doubt. (Pet. ¶ 12(D), alleging "wrong description of weapon" and "the sizes of weight, h[e]ight[,] eyes, and complexion was wrong, I had [facial] hair and none of them brought it up.")
The State contends that this ground was not properly exhausted in state court and thus is barred from federal habeas review. (State Br. at 8-12.) Bryant concedes that he did not raise these claims in his direct appeal, but asserts that he failed to do so because he "was blind to the law" and his "lawyer did not inform [him] until [he] got a brief of the appeal, and didn't knowbody [sic] recognize me in the trail [sic]." (Pet. ¶ 13.)
Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Gumbs v. Kelly, 2000 WL 1172350 at *5; Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 360.
Accord, e.g., Brock v. Artuz, 99 Civ. 1903, 2000 WL1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N Y July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.) ( cases cited therein); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N Y 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
For a general discussion of whether a district court should dismiss a mixed petition without prejudice under the AEDPA, see, e.g., Orraca v. Walker, 53 F. Supp.2d at 609-12; Otero v. Stinson, 51 F. Supp.2d at 419-421.
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state]appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732-34; Brock v. Artuz, 2000 WL 1611010 at *12; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 9; Ventura v. Artuz, 2000 WL 995497 at *10; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7 n. 9; Thomas v. Greiner, 111 F. Supp.2d at 275; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 360-61; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.).
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191.
Accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 10; Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *5 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.); Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir 1984); Daye v. Attorney Gen., 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
See also, e.g., Brock v. Artuz, 2000 WL 1611010 at *12 n. 19; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 11; Holden v. Miller, 2000 WL 1121551 at *5; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney General, 696 F.2d at 194.
Accord, e.g., Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688; Brock v. Artuz, 2000 WL 1611010 at *12 n. 20; Gumbs v. Kelly, 2000 WL 1172350 at *5 n. 12; Holden v. Miller, 2000 WL 1121551 at *6; Mendez v. Artuz, 2000 WL 722613 at *24 n. 15; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Jordan v. LeFevre, 22 F. Supp.2d at 266, aff'd in relevant part, 206 F.3d 196 (2d Cir. 2000); Diaz v. Coombe, 1997 WL 529608 at *3.
Although Bryant's state appeal brief in passing questioned the knife description and asserted that the elderly victims had trouble identifying petitioner at trial (see Saperstein Aff. Ex. 1: Bryant 1st Dep't Br. at 34-35), this was only in the context of Bryant's challenge to the modus operandi jury charge (id.). Bryant's counsel made no federal constitutional arguments and cited only New York cases and New York statutes. (See Bryant 1st Dep't Br. at 28-36.) Bryant therefore did not "fairly present" the federal issue to the state courts, if he presented it at all. Indeed, Bryant concedes in his petition that he failed to raise the identity/weapon issues before the First Department. (Pet. ¶ 13.) The claim, therefore, is not exhausted.
"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989)).
Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted."); Brock v. Artuz, 2000 WL 1611010 at *13 n. 23; Gumbs v. Kelly, 2000 WL 1172350 at *7 n. 16; Holden v. Miller, 2000 WL 1121551 at *8; Foreman v. Garvin, 2000 WL 631397 at *9; Thomas v. Greiner, 111 F. Supp.2d at *276; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at * 3 (S.D.N.Y. Oct. 7, 1998); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 n. 7 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.).
In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254 (b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.
Accord, e.g., Brock v. Artuz, 2000 WL 1611010 at *13; Gumbs v. Kelly, 2000 WL 1172350 at *7; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Camarano v. Irvin, 902 F. Supp. at 364.
See also, e.g., Brock v. Artuz, 2000 WL 1611010 at *13; Gumbs v. Kelly, 2000 WL 1172350 at *7; Holden v. Miller, 2000 WL 1121551 at *8; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Redd v. Quinones, 1998 WL 702334 at *3.
In this case, it is clear that Bryant is now barred from raising his fourth habeas claim in state court because it could have been raised on direct appeal, but was not. As the Second Circuit explained in Washington v. James:
New York C.P.L. § 440.10(2)(c) states, in pertinent part:
2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .
Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10 (a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.996 F.2d at 1446-47.
See also, e.g., Reyes v. Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added); Bossett v. Walker, 41 F.3d at 829; Brock v. Artuz, 2000 WL 1611010 at*13 n. 23; Gumbs v. Kelly, 2000 WL 1172350 at *7-8 n. 20; Holden v. Miller, 2000 WL 1121551 at *8; Foreman v. Garvin, 2000 WL 631397 at *9; Thomas v. Greiner, 111 F. Supp.2d at *277; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 363; Redd v. Quinones, 1998 WL 702334 at *3.
"To avoid such a procedural default, a habeas petitioner must demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice, i.e., a showing of actual innocence. Brock v. Artuz, 2000 WL 1611010 at *13 (internal quotations and alterations omitted).
Accord, e.g., Gumbs v. Kelly, 2000 WL 1172350 at *8 n. 21; Holden v. Miller, 2000 WL 1121551 at *8; Perez v. Greiner, 2000 WL 915114 at *7; Mendez v. Artuz, 2000 WL 722613 at *26; Foreman v. Garvin, 2000 WL 631397 at *10; Thomas v. Greiner, 111 F. Supp.2d at 278; Cruz v. Greiner, 1999 WL 1043961 at *23; Lugo v. Kuhlmann, 68 F. Supp.2d at 363; Gibriano v. Attorney General, 965 F. Supp. at 493 n. 5.
Bryant alleges that he did not raise this claim because he "was blind to the law" and because "the lawyer did not inform me until I got a brief of the appeal." (Pet. ¶ 13.) Liberally construing Bryant's petition, Bryant seems to be asserting that ineffective assistance of counsel constituted the "cause" for his failure to raise the claim below. Although ineffective assistance may constitute the requisite cause for a petitioner's failure to raise a claim before the state court, the exhaustion doctrine "requires that a claim of ineffective assistance be presented to state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 2646 (1986); see also, e.g., Reyes v. Keane, 118 F.3d 139-40; Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (S.D.N Y Apr. 13, 2000) (Peck, M.J.); Cruz v. Greiner, 1999 WL 1043961 at *15; Lugo v. Kuhlman, 68 F. Supp.2d at 365 n. 11; Bond v. Walker, 68 F. Supp.2d 287, 298 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 146 (S.D.N.Y. July 9, 1999) (Scheindlin, D.J. Peck, M.J.); Redd v. Quinones, 1998 WL 702334 at *3; Taylor v. Mitchell, 939 F. Supp. 249, 255 (S.D.N.Y. 1996); Gaiter v. Lord, 917 F. Supp. 145, 149 (E.D.N.Y. 1996). Alternatively, if Bryant is seeking to excuse his failure to exhaust based on his ignorance of the law, that is not "cause." See, e.g., Tapia-Garcia v. United States, 53 F. Supp.2d 370, 373, 378 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.) (and cases cited therein); Rodriguez v. United States, 866 F. Supp. 783, 785 (S.D.N.Y. 1994).
Bryant's fourth habeas claim should be denied as unexhausted and procedurally barred.
CONCLUSION
For the reasons set forth above, Bryant's habeas petition should be denied in its entirety. Since the petition fails to make a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253 (c)(2).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Allen G. Schwartz, 500 Pearl Street, Room 1350, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Schwartz. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).